A legal presumption that parents of children between 10 and 14 are incapable of evil, which dates back many centuries, must be made law as one of the recommendations in a review of laws in New South Wales, a former Supreme Court judge and a former senior NSW police figure has suggested.
The age of criminal responsibility is 10 in NSW, but by presumption of doli incapax, which means Latin: incapable of evil, may extend to 14, to provide protection to children who are being charged on the basis that they are unaware of the distinction between what is right or wrong.
The prosecution can refute the presumption; however, in 2016, a high court ruling defined the way the presumption should be applied: prosecutors must show that the child had an idea that he/she was grossly wrong when he/she committed a crime.
Convention rates among children between the ages of 10 and 13 have since gone down, and the state Nationals have been lobbying the NSW government and the Liberals to change doli incapax to a different one.
The review comes after a report by the NSW Bureau of Crime Statistics and Research (Bocsar) that reported a decline in the rate of prosecution of 10- to 13-year-olds in court to 16% in 2022-23 compared to 76% in 2015-16.
Bocsar also states that the criminal justice system in the state is disproportionately represented by Aboriginal children and children in the state in regional and remote regions of NSW. The Aboriginal legal groups stated that the criminal age should be increased to 14 and the presumption of doli incapax should not be present at all.
The review, headed by Geoffrey Bellew SC, a chair of the state parole authority, a former judge of the Supreme Court, and Jeffrey Loy, a former deputy commissioner of the NSW police, was published on 25th October.
There were seven recommendations that comprised a new legislative framework whereby the presumption of doli incapax in NSW can be enacted, which substantiates the presumption that, unless it is disproved, a child over the age of 10, but under the age of 14, cannot commit an offence.
Bellew and Loy admitted in the report that the existing test to show that the presumption has been rebutted places a high burden, but nonetheless said the burden was an important protection against the risk of making inappropriate conclusions of criminal responsibility when a child is not aware, and the consequences of a criminal conviction on children aged 1013 years are too high.
The report recognised that youth crime is a legitimate issue among most communities in NSW, but provided that the data only shows that a small percentage of kids between 10 and 13 years old take part in serious or persistent offending.
This is the reason why one should not mix up that focus with wider issues that are a result of youth crime, which includes older children.
They proposed an optional channel for children in the criminal justice system, as well as referrals, a conduct assessment, and a support plan for children with complex needs.
They further advised the government to take into consideration court orders that would permit children between the ages of 10 and 13 years to receive therapeutic treatment in proper situations.
The NSW attorney general, Michael Daley, said in a statement on Saturday that the review indicates that the current settings are not working in the best interest of children, as well as the community in general.
Daley said that they did not want children to be left without any intervention, even when the charges are dismissed or withdrawn, only to be brought back before the courts, since they were not assisted to change their behaviour. Aboriginal Legal Service chief executive, Karly Warner, was pleased with the recommendations in the report.
We are aware of the fact that putting children into custody is not only adding to the trauma of a particular child, but also raising the chances of the child reoffending as an adolescent or adult in the future, and consequently committing more crime in the future, as well, as it was said by Warner in a statement.
When the review was announced in May, Timothy Roberts, president of the NSW Council for Civil Liberties, said that it was unnecessary in the first place.
Roberts was wondering how, at a moment when the people of NSW were supposed to be asking themselves whether children younger than 10 years of age should be facing a criminal charge at all, whether children in year 4 or 5 at a primary school, should also be the subject of a government review that undermined fundamental legal values that safeguard our community against wrongful prosecutions.
“What is wrong with the court saying that we must be certain that children, as young as 10, with criminal charges know that what they are accused of is wrong, and we know this beyond a reasonable doubt? It is good that there are fewer young children in prison”, Roberts said.
